Ear To The Ground

California Attorney General seeks to limit scope of "public interest" releases in Prop. 65 settlements

California's Proposition 65 (Sections 25249.5 et seq Health & Safety Code) is an unusual regulatory scheme. Lawsuits may be filed by private individuals. Plaintiffs are not required to have standing. The law only addresses a warning requirement; it does not itself prevent or constrain the presence of any listed chemical. Thus, a product can contain, as we euphemistically say, methyl ethyl death, and so long as the product has the standard warning, there is nothing in Prop. 65 that limits the presence of said chemical. For an overview of Prop. 65, see http://www.rmkb.com/index.cfm/publications/publication-details/?pkid=253.

Unfortunately, the law has been subject to abuse in the past; some corrective measures have been enacted. Despite these measures, the law is seen as a tool used by some to extract "greenmail" from businesses; other view the law as providing an "incentive" to remove harmful chemicals from products sold not only in California, but elsewhere.

One of the abuses often noted by both the California Attorney General and those subject to such lawsuits is that plaintiff lawyers are more interested in generating fees than in achieving real change in the content of consumer products. Plaintiffs have been accused of exchanging very broadly worded releases as part of settlements in exchange for "generous" attorney's fees. Such settlements also often provide minimal return to the State of California, which is theoretically entitled to 3/4 of the penalties imposed.

In terms of addressing the release issue, the California Attorney General has now made known that it views any settlement release made in the "public interest" that is broader than the product(s) and listed chemical(s) set forth in the 60-day notice to be improper. This view was announced at a conference on Prop. 65 a couple of months ago, and has now been reiterated in a letter from the California AG to the usual cast of Prop. 65 plaintiff's lawyers. Thus, a standard, "public interest" release would be, in the California AG's view, short and sweet:

“Plaintiff acting on its own behalf and in the public interest releases Defendant [and other specified entities] from all claims for violations of Proposition 65 through the Effective Date based on exposure to [Covered Chemicals] from [Covered Products] as set forth in the Notice(s) of Violation. Compliance with the terms of this Consent Judgment constitutes compliance with Proposition 65 with respect to exposures to [Covered Chemicals] from [Covered Products or Covered Facilities] as set forth in the Notices of Violation(s).”

The terms "Effective Date," "Covered Chemicals," "Covered Products," and "Covered Facilities" would be defined with specificity in the settlement, or reference would be made to their exact nature in the relevant provisions.

The California AG also states that any individual plaintiff may itself include whatever release it wishes insofar as the defendant(s) are concerned, but that such a release is obviously limited to the plaintiff only; it is not a public interest release.

Ultimately, this will likely be set forth in the AG's "regulations" on Prop. 65, which have the legal impact only of guidance.

Given the budget crisis in California, one can also expect the California AG to be much more aggressive on the penalty aspect of settlements. The low amounts frequently seen in settlements may literally and figuratively be a thing of the past.

Because of the release "guidance" that is likely to come into play very soon, if it has not already, one can also expect to see plaintiffs filing more "follow-on" lawsuits against those who have come into their sights. Since an individual release may be stated broadly and prevent such activity, such a release will not prevent a different plaintiff (perhaps even fronted by the same lawyer) from filing another lawsuit against the same defendant involving a different product and/or listed chemical. This may force more companies to try Prop. 65 cases, especially since the law on what is an "exposure" and how it is scientifically determined is, even after 25 years, still undetermined. See, for example, the discussion at http://www.rmkb.com/index.cfm/publications/publication-details/?pkid=873.

Wood stoves help to reduce cases of severe pneumonia in young children in LDC's

Pneumonia in children, although rare in the U.S., kills more children worldwide than any other disease (estimated to be 1.6 million deaths per year).  [Prior posts have noted, though, the adverse impact of various air pollutants on urban children.]

Researchers hypothecated that open fires used for heating and cooking are a major cause of childhood pneumonia.  To test the thesis, they selected 534 households in rural Guatemala, each containing a pregnant woman or a young infant.  Households were randomly assigned a chimney-stove; as such 265 had chimney stoves and 253 used traditional cooking fires.  Trained field workers visited each home every two weeks to record the children's health status; sick children were referred to doctors.  They also assessed the state of the chimney stoves and made necessary repairs.  CO measurements were taken for 48 hours every 3 months. 

Although the intervention did not reduce the number of childhood pneumonia cases, it did reduce severe pneumonia cases by 30%.  This reduction was akin to that achieved by vaccinations and nutrional supplements.

The study can be found at http://cleancookstoves.org/wp-content/uploads/2011/05/Household-Cookstoves.pdf and http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(11)60921-5/abstract.    

FDA to decide by end of March 2012 whether to ban BPA from food and beverage packaging

Prior posts have noted the numerous studies that have been conducted (using animal models) on BPA.  It has also been noted that a low level of BPA is present in nearly all U.S. residents (although some research suggests the levels present are higher than generally suggested).  Further, research in the last year has demonstrated that the principle source of BPA exposure is cash register receipts (thermal paper).

NRDC sued FDA, and a consent judgment (aka settlement) was entered in Dec., 2011.  See http://www.nrdc.org/media/2011/111207.asp.

FDA will thus decide before the end of March 2012 whether to remove BPA from food and beverage containers.  Unfortunately, this will not remove what appears to be the prime source of BPA exposure, cash register receipts.  

CDC Advisory Committee recommends lead poisoning be deemed to start at 5 mcg per dL

Prior posts have noted a number of studies over recent years that have demonstrated the adverse impact of lead at levels below that traditionally considered as indicating "lead poisoning", 10 mcg/dL.

Lead poisoning continues to be a serious health problem for young children, especially those living in cities, so a government advisory committee is recommending that the definition of lead poisoning be changed to include a lower levels of exposure.

The current level set by CDC states that 10 micrograms of lead per dL of blood should be considered lead poisoning. [See http://www.cdc.gov/lead/.] At these levels, children may show symptoms such as abdominal pain, low appetite, difficulty sleeping, and constipation, as well as behavior or attention problems, hearing difficulties, and slower growth. Most of the adverse effects of lead on the brain and nervous system build over time, so these symptoms are difficult to pinpoint immediately after exposure.

An advisory committee to the CDC has reviewed the most recent data linking lead levels and developmental and physical problems in young children, and is now recommending that the definition of poisoning be changed to start at blood levels of 5 mcg/dL. This would mean that nearly a million children in the U.S. would be deemed to suffer from lead poisoning, approximately four-times the number deemed impacted under the current definition. The panel's advice follows that of a similar panel convened by FDA several days earlier, and that of the National Toxicology Program (part of HHS) which released a report in October. Both also recommended that lead poisoning be changed to include children with blood levels of 5 mcirogm/dL.

The CDC advisory commitee report can be found at http://www.cdc.gov/nceh/lead/ACCLPP/Final_Document_010412.pdf.

The Columbian and Woolly Mammoth may be one highly variable species

What is interesting about genetic analysis is the way it has the potential to upset otherwise well-established classifications of animals. A good example is the Mammoth, Ice Age beasts well known to one and all.

Although they both roamed North America a millennia ago, accepted taxonomy had classified the woolly mammoth (Mammuthus primigenius) and Columbian mammoth (Mammuthus columbi) as two species. The smaller woolly mammoth was hypothecated to have immigrated from Eurasia, while the larger Columbian mammoth was considered native to North America.

Researchers, using a very limited "data set" (one well-preserved Columbian mammoth from Utah and one less well-preserved one from Wyoming), found that DNA analysis placed both on the same branch of the genetic "family tree" as a subgroup of woollies. Critics have justifiably noted that limited data, and are not embracing the new classification absent more DNA evidence. This is perfectly reasonable, especially given that to date the analysis has only assessed DNA from the mitochondria. Researchers have noted that mitrochondrial DNA and DNA from other cell nuclei do not always point to the same conclusion. More assessments will be forthcoming.

The report can be found at http://genomebiology.com/2011/12/5/R51.

Fungus identified as cause of widespread die-off of little brown bats in U.S.

A lethal disease has been causing large die-offs of little brown bats; it has been found in bats hibernating in 16 States and 4 Canadian provinces. Researchers have now identified the fungus Geomyces destructans as the primary cause of white-nose syndrome. Tests have demonstrated that the fungus can be spread by contact in shared hibernation spots.

Though the fungus is widespread in Europe it does not cause die-offs, possibly because the bats in Europe have been previously exposed, and the current population is made up of the descendants of those that survived. This is the type of classic selection factor result that has been described in past posts addressing evolution driven by a variety of environmental selection factors.

The report on the cause of the disease can be found at http://www.nature.com/nature/journal/v480/n7377/full/nature10590.html.

California Superior Court blocks regional GHG regulations for failing to undertake CEQA review

In Nov. 2010 the California Building Industry Association (CBIA) filed suit against the Bay Area Air Quality Management District’s (BAAQMD) CEQA Guidelines re GHG emissions. Among other requirements, environmental evaluations were required if a project was to be built within 1,000 feet of a freeway, oil refinery,or other air pollution source. Developments producing 1,100 metric tons of GHG emissions per year would have to draft environmental reports as part of the approval process. [In California, the California Environmental Quality Act (CEQA) is substantive law, not merely procedural law, unlike NEPA.] The Guidelines had been expected to be a model for other air quality management districts in California.

On Jan. 16, 2012, the Alameda County Superior Court struck down the Guidelines on the grounds that the Guidelines themselves must first undergo a CEQA review. Although the Court has not yet issued a written order, it is expected to set aside the Guidelines unless and until BAAQMD conducts CEQA review. The Court noted that the BAAQMD should have reviewed the environmental impact of the Guidelines, including their impact on future growth and transportation patterns. The CIBA had, among other bases, claimed that the Guidelines would exacerbate urban sprawl, thus hindering compliance with AB 32, California's law to reduce GHG emissions to 1990 levels by 2020.

The BAAQMD has not yet announced if it will appeal. [Expect an appeal.]

The case is California Building Industry Assoc. v. Bay Area Air Quality Management District, Alameda County Superior Court, Docket No. RG10548693.

Intestinal bacteria may trigger multiple sclerosis

Physicians have not identified the cause of multiple sclerosis. Theses include an individual's genetics, environment, and possibly a virus. In such an environment, all types of theories can be thrown up and become the basis for litigation, not unlike what happened with mercury preservatives in various innoculations.

A study with mice has indicated that normal intestinal bacteria may be the trigger for this immune disorder. With MS, the immune system attacks the brain, stripping away the myelin sheath from nerve cells, which in turn causes inflammation that leads to the disease.

Researchers noted that mice genetically engineered to develop multiple sclerosis–like symptoms do not get the disease when raised without any bacteria in their guts. But about 80% of the germ-free mice that were then colonized with intestinal bacteria quickly developed the disease. None of the germ-free mice developed the disease.

The researchers noted that the result is not a total surprise since previous reports had indicated that gut bacteria might be involved in such autoimmune disorders such as juvenile diabetes and arthritis. Intestinal bacteria help the immune system mature properly and interact with the immune system all the time. Thus, the researchers believe a faulty immune response triggers the problem. However, it is unclear at present what is not functioning properly, and also which of the multitude of bacteria may be causing the reaction.

The report can be found at http://www.nature.com/nature/journal/v479/n7374/full/nature10554.html.

What drives developmental defects in children exposed to drugs and alcohol as fetuses? Loss of chromosomes in brain cells?

Prenatal exposure to amphetamines and alcohol produces abnormal numbers of chromosomes in fetal mouse brains. The findings suggest these abnormal counts may contribute to the developmental defects seen in children exposed to drugs and alcohol in utero.

Researchers injected pregnant mice with alcohol or amphetamines when the embryos were 13.5 days old, a time equivalent to the second trimester in humans. When the brains of the exposed mice were examined, it was found that from half to 2/3 of brain cells had an abnormal (lower than normal) number of chromosomes. The missing chromosomes may cause cells to die or function improperly, the researchers noted.

The findings were presented at Neuroscience 2011, the annual meeting of the Society for Neuroscience. See http://www.sfn.org/siteobjects/published/0000BDF20016F63800FD712C30FA42DD/A8BCE4D16130BADA681BD842BC267FD4/file/Nature%20Nurture%20FINAL%20DRAFT.pdf.

How do schools of fish maneuver together? Watch the trees, not the forest

Watching large schools of fish maneuver with the grace of a water ballet leads to an obvious question: How do so many animals spread over what is often many yards coordinate their activities with such precision? They keep an eye on their immediate neighbors. However, how many neighbors they watch is a matter for debate, at least for now.

Scientists have simulated the patterns created by fish, birds, bacteria, and other living organisms that move in groups. Typically, these computer simulations treat the creatures like magnets, their movements akin to "forces" that pull to keep the group together and push to prevent individuals from running into each other. Few studies, though, have looked at individual animals within the group to tease out the behaviors that give rise to these forces.

To see things from the perspective of a single fish, one group of researchers filmed and tracked groups of mosquitofish swimming around the edge of a tank in the lab. The researchers used neural networks, a technique inspired by the human brain for finding patterns, to analyze how each creature responded to other fish surrounding it. Their conclusion -- fish focused on their nearest neighbor.

In contrast, another group of researchers found that pairs of interacting fish might not be enough to explain all the patterns observed in schools. Watching golden shiners swim, these researchers found that fish in groups of three also seemed to coordinate their movements with one another.

Not surprisingly, there is probably no universal number. Previous studies have suggested that pedestrians choose their paths based on two or more neighbors when moving in a crowd. In contrast to the fish studies described above, observations of starlings suggest that they watch six or seven other birds when flocking.

Are these differences reflective of brain size? processing capacity? evolutionary pressures lost to the sands of time? As they say, stay tuned.

The two fish studies can be found at http://www.pnas.org/content/early/2011/11/02/1109355108.full.pdf+html and http://www.pnas.org/content/early/2011/07/26/1107583108.full.pdf+html.